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One To Keep An Eye On: Berger v. National Collegiate Athletic Association


As with many employment and labor law related cases (and bills) that are being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


Facts:  In early December, the Seventh Circuit Court of Appeals issued an opinion in regard to a Fair Labor Standards Act ("FLSA") suit brought by former student athletes at the University of Pennsylvania.  The student athletes claimed that they were "employees", in accordance with the FLSA, and therefore were entitled to minimum wage as a result of their participation in the women's track and field team while at the university.  As a result, the former student athletes argued they were not paid for their "work" in violation of the FLSA. 

The Seventh Circuit issued a ruling from three judges on the bench and dismissed the FLSA suit on the ground that student athletes who voluntarily play sports for a college does not entitle the students to being classified as "employees" under the FLSA.  Therefore, the Court held these student athletes did not have a valid claim for minimum wage under the FLSA.

Issue:  Are student athletes who perform "work" for a university ("work" in this case being defined as participating in a collegiate sports team) actually "employees" and therefore entitled to be paid minimum wage in accordance with the FLSA?

Current Status:  On December 16, a petition for rehearing was filed in which the student athletes asked for an en ban rehearing.  In the petition, the student athletes claim the opinion from the three judges on the bench conflicted with prior caselaw and improperly relied upon non regulatory guidelines.  At this time, no ruling has been made on the petition for rehearing nor have any hearings been set on the matter.

Looking Ahead:  Assuming the Seventh Circuit agrees to rehear the matter, I would be surprised if a different ruling was reached.  For those curious, give the original December 5th opinion a further review.  I think the three judges who issued the opinion tracked the matter relatively well and pointed to the inefficiencies that the student athletes had (namely being able to establish, at a minimum, that they were "employees" under the FLSA).  I would not hold my breath on this one, for those hoping for a different outcome.

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